©2022. Published in the Puget Sound Business Journal, March 2022. Reproduced with permission.
People often think about estate planning in terms of leaving a legacy to their loved ones or charitable organizations. An estate plan should also address what you want to happen to your online assets – your digital legacy. In planning for your digital legacy, it is important to understand the nature of your digital assets, who will have the legal authority to access those digital assets when you pass away, and whether you want your digital assets deleted or distributed with your estate.
Most people these days have digital assets, which include electronic records, accounts, or content stored online. Digital assets include social media, personal websites, cloud storage, cryptocurrency, and other online accounts. A digital asset does not include the underlying asset contained in an account unless the asset itself exists only as an electronic record.
Can a will distribute the contents of your digital accounts?
The terms of service you likely agreed to without reading when setting up an online account can control what happens to that account. Some types of online accounts, such as an Amazon Kindle user account, have terms of service that grant a license to the content you purchase but do not grant ownership of the content. If you are granted a license, you can access the content under the terms of service during your lifetime, but you cannot provide for the transfer of this licensed content to another person unless the terms of service provide otherwise. In other words, you cannot distribute your Kindle book collection like you can direct the distribution of a physical book collection after you pass away.
If an account has a beneficiary designation, that beneficiary designation will control. Many online accounts do not provide a way to designate a beneficiary, however. Your will or Revocable Living Trust can designate a beneficiary to receive content you own that is stored in your digital accounts. In planning for your digital legacy, however, there may be unique details to consider. Certain online assets, such as bitcoin and other cryptocurrencies, are anonymous and do not provide a way to designate a beneficiary. While digital assets can be distributed under a will, if a unique key is required to access a cryptocurrency account, you also will need to transfer this digital key. Further, these keys must be shared in a manner consistent with the terms of service.
Who can access your digital assets?
Some online accounts, such as Facebook and Apple, allow you to designate a legacy contact in your account settings. A legacy contact can access, manage, and delete your account. This legacy contact designation will control who can access the account regardless of any designation in your estate planning documents. If the account allows you to specify that you would like it deleted on your death, your legacy contact would have the ability to carry out your wishes and delete your account.
If you do not designate a legacy contact, you can indicate whether the fiduciaries you nominate in your estate planning documents are permitted to access your digital assets. Washington law provides for fiduciary access to online accounts under the Uniform Fiduciary Access to Digital Assets Act. A fiduciary with access to your digital assets can access content, close or delete accounts, and distribute account contents as you direct. In addition, you can facilitate fiduciary access to your online accounts by providing your fiduciaries with instructions for how to access your password vault or otherwise access your online accounts. While passwords should never be included in your estate planning documents themselves, it may be helpful to store a password list or instructions for accessing online accounts in the same location as your estate planning documents.
In addition to more traditional planning for the transfer of your financial assets and real property, estate planning in 2022 should include planning for what happens to your digital assets when you pass away. Understanding your digital assets, designating legacy contacts in your account settings, providing fiduciaries with access to your online accounts, and addressing whether you want your digital assets to be deleted or distributed are all part of planning for your digital legacy.
This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.